Canning v. Poole et al
Filing
132
MEMORANDUM OPINION & ORDER: DENYING dft's 125 Motion for Attorney Fees. Signed by Judge Gregory F. Van Tatenhove on 9/13/13. (KJR)cc: COR, Pla (US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
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NANCY L. CANNING,
Plaintiff,
V.
BARBARA W. POOLE, ET AL.,
Defendant.
Civil No.: 10-16-GFVT
MEMORANDUM OPINION
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ORDER
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On December 18, 2012, the Court1 granted Defendant Brook Ledge’s second motion for
summary judgment, disposing of the last of Plaintiff Nancy Canning’s claims against the three
horse transportation companies named in her complaint. [R. 123]. Now, Brook Ledge,
Morrissey’s Horse Pullmans, and Creech Horse Transportation, (collectively “Horse
Transportation Defendants”) argue that these claims were either baseless or made as a result of
bad faith, such that Canning should pay the resulting attorney’s fees pursuant to 42 U.S.C. §
1988, 28 U.S.C. § 1927, or the Court’s implied powers. [R. 125]. Though Canning, who has
been dormant in this case for over a year, has not responded in opposition, the Court finds that
the Horse Transportation Defendants have not sufficiently justified the imposition of attorney’s
fees under any of the stated theories, and therefore, their Motion for Attorney Fees and Non-
1 Judge Jennifer Coffman was the presiding judge during the majority of this case, including the period during which
all previous dispositive motions were resolved. Upon Judge Coffman’s retirement, this case was reassigned to the
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Taxable Expenses shall be DENIED.
I
Canning claims that as a result of a dispute over the performance of and payment for
certain veterinary services, over $3,000,000 worth of equine stock was improperly removed from
her farm in execution of a lien placed on those horses. She states that the removal was
effectuated through the use of certain commercial horse haulers, including Morrissey’s Horse
Pullmans, Creech Horse Transportation, and Brook Ledge. As a result, Canning brought claims
against these horse haulers, among other defendants, for violation of her Fourth Amendment
rights pursuant to 42 U.S.C. § 1983, conversion, malicious abuse of legal process, and intentional
infliction of emotional distress. [R. 5].
Before a scheduling order was entered in the case or the parties had begun discovery,
Brook Ledge moved the Court for summary judgment. [R. 37]. Therein, Brook Ledge stated
that it had no involvement in the incident and that none of its agents or equipment were even
present at the time that these events occurred. In support, Brook Ledge tendered affidavits from
its Kentucky dispatcher and its co-defendant Barbara Poole, both of whom testified that Brook
Ledge had no involvement in the removal of Canning’s horses. [R. 39]. However, Canning
responded with an affidavit in which she swore under oath that at the time of the incident she
personally saw a horse carrier with “Brook Ledge” written on it and horses being loaded therein.
[R. 42-1 at 2]. Further, she noted that some of the horses loaded into the Brook Ledge carrier
were injured, including one that might have to be euthanized. [Id.] In the same affidavit,
Canning also claimed to have seen Morrissey’s and Creech Horse Transportation trailers used to
undersigned for all further proceedings. [R. 124].
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remove horses from her farm. She identified a driver and horses that she claimed to have been
associated with the Morrissey’s trailer and indicated that she had to intervene to stop Morrissey’s
agent from “beating” Chief Gossip, one of her mares. [Id. at 1-2]. Canning also stated that
officials from the Bourbon County Sheriff’s Department were present with a court order by
which they “commanded the horse haulers to dispose of the horses by bailment.” [R. 42 at 2].
The Court denied Brook Ledge’s motion for summary judgment largely on the basis that
Canning’s affidavit showed a genuine issue of material fact. [R. 63].
In the same Order, the Court granted the motion of Canning’s counsel to withdraw due to
a “breakdown in the professional relationship.” [R. 60, R. 58]. Canning never retained substitute
counsel and thereafter pursued her claims pro se. Subsequently, the Court dismissed Canning’s
claims against horse haulers Morrissey’s and Creech Transportation pursuant to Federal Rule of
Civil Procedure 4(m) for failure to effectuate service within 120 days. [R. 64].
Being the only horse hauler remaining in the action, Brook Ledge filed a second motion
for summary judgment to which Canning failed to respond. [R. 119]. The Court granted the
motion, finding that Canning’s Section 1983 claim failed because the horse hauler was not acting
under color of state law. [R. 123 at 2]. Further, the Court found that Canning had not introduced
sufficient evidence that Brook Ledge exercised dominion of her property for its own use or
enjoyment in order to successfully maintain a conversion claim under Kentucky law. [Id.] The
Court also disposed of Canning’s malicious prosecution claims and abuse of process claims
because she had neither shown that a prior proceeding had been terminated in her favor or that
Brook Ledge had acted with any ulterior motive. [Id. at 3]. Finally, the Court found that
Canning had set forth insufficient proof of emotional distress to proceed on her state law
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intentional infliction of emotional distress claim. [Id.]
Following the entry of summary judgment in favor of Brook Ledge, the Horse
Transportation Defendants filed the motion for attorney’s fees that is presently pending before
the Court. Therein, the Horse Transportation Companies petition the court under 42 U.S.C. §
1988, 28 U.S.C. § 1927, and its implied powers to award attorney’s fees in the amount of
$44,311.15. The Horse Transportation Defendants claims that this amount is warranted “because
plaintiff’s conduct was frivolous, unreasonable, or without foundation” and because Canning
“unreasonably and vexatiously multiplied the litigation though her frivolous claim or at least
conduct that is ‘tantamount to bad faith.’” [R. 125-1 at 11].
II
A
The principle that each party bear the costs of his or her own litigation expenses,
including attorney’s fees, is so entrenched in the justice system of this country that it has become
known as the “American Rule.” Fox v. Vice, 131 S. Ct. 2205, 2213, 180 L. Ed. 2d 45 (2011)
(citing Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 44
L.Ed.2d 141 (1975)). However, in certain special circumstances, Congress has created
exceptions wherein the fee may be shifted from one party to another. One such provision is 42
U.S.C. § 1988, under which a court may award attorney’s fees to a party who prevails in an
action to enforce provisions of, among others, Section 1983. Ordinarily claims for attorney’s
fees under Section 1988 are made by prevailing plaintiffs who have “succeeded in remedying
some civil rights violation.” Fox, 131 S.Ct. at 2213. “Fee shifting in such a case at once
reimburses a plaintiff for what it cost him to vindicate civil rights and holds to account a violator
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of federal law,” Id. (citing Christiansburg Garment Co. v. Equal Employment Opportunity
Comm'n, 434 U.S. 412, 48, 98 S. Ct. 694, 54 L. Ed. 2d 648 (1978); Riverside v. Rivera, 477 U.S.
561, 577–578, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986)) (internal quotation marks and citations
omitted).
However, the Supreme Court has determined that, as in the Title VII context, recovery of
attorney’s fees under Section 1988 is not a one way street. Under this provision, a prevailing
defendant may also recover attorney’s fees in order to “protect defendants from burdensome
litigation having no factual basis.” Id. (citing Christiansburg 434 U.S. 412 at 420). However,
district courts may only award attorney’s fees to a prevailing defendant under Section 1988,
“upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation.”
Id. Courts applying this standard are cautioned to “resist the understandable temptation to
engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail,
his action must have been unreasonable or without foundation.” Christiansburg Garment Co.,
434 U.S. at 421-22. Further, “because an award of attorney's fees against a losing plaintiff in a
civil rights action is an extreme sanction it must be limited to truly egregious cases of
misconduct. Lowery v. Jefferson Cnty. Bd. of Educ., 586 F.3d 427, 437 (6th Cir. 2009) (citing
Jones v. Continental Corp., 789 F.2d 1225, 1232 (6th Cir.1986)) (internal quotation marks
omitted).2
2 As demonstrated by Judge Sutton in Lowery, the Sixth Circuit Court of Appeals has oft vacated an award of
attorney’s fees granted by district courts which do not so limit the scope of Section 1988 . Lowery, 586 F.3d at 437
(citing Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 300 (6th Cir.2008); Revis v. Meldrum, 489 F.3d 273,
293 (6th Cir.2007); Lisle v. Met. Gov't of Nashville & Davidson County, 73 Fed.Appx. 782, 791 (6th Cir.2003);
Tahfs v. Proctor, 316 F.3d 584, 596 (6th Cir.2003); Dubuc v. Green Oak Twp., 312 F.3d 736, 755 (6th Cir.2002);
Riddle v. Egensperger, 266 F.3d 542, 553 (6th Cir.2001); see also Salkil v. Mt. Sterling Twp. Police Dep't, 458 F.3d
520, 532 (6th Cir.2006) (reversing under same standard of review for 28 U.S.C. § 1927)).
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The Horse Transportation Defendants provide a clear and thorough recitation of the
aforementioned legal standard for provision of attorney’s fees, but are somewhat more evasive as
to the particular facts of this case that, when applied, would render attorney’s fees appropriate
herein. The most salient reason that the Defendants seem to advance is that Canning’s claims
against them were baseless because, as they maintained from the very beginning, they had no
involvement with the incident. In support of this argument Brook Ledge references its answer
and first motion for summary judgment, which denied involvement and contained affidavits with
sworn testimony of its dispatcher and a co-defendant that Brook Ledge was not present at
Canning’s farm during the relevant period. The Defendants note that no discovery ever
materialized showing that they were at the scene of the incident or that Canning suffered
emotional distress. The Horse Transportation Defendants also point to two new facts that they
believe favor their position that Canning’s claims are baseless. First, they indicate that the Court
granted Brook Ledge’s motion for summary judgment on the grounds that Canning failed to
make a sufficient showing to establish the existence of elements essential to her case. Second,
the Defendants have tendered additional affidavits, including one from Nicole Pieratt, who
claims that Canning’s attorney stated to her in a phone conversation that he was prepared to sue
“all commercial horse transporters” to determine who was present at the incident. [R. 125-2].
The Defendants claims that this is “a clear indication Plaintiff and her attorney did not know who
was present.” [R. 125-1 at 2].
As an initial matter, it should be noted that the Court’s ultimate determination that
Canning’s claims failed as a matter of law is not alone sufficient to merit an award of attorney’s
fees. See Smith v. Smythe-Cramer Co., 754 F.2d 180, 183 (6th Cir. 1985) (citing Christiansburg,
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449 U.S. at 16, 101 S.Ct. at 179) (“the mere fact that allegations prove legally insufficient to
require a trial does not, for that reason alone, render a complaint groundless under
Christiansburg.”).
Additionally, “a plaintiff should not be assessed his opponent's attorney fees unless the
court finds the claim was groundless at the outset or that the plaintiff continued to litigate after it
clearly became so.” Wilson-Simmons v. Lake Cnty. Sheriff's Dep't, 207 F.3d 818, 823 (6th Cir.
2000) (citing Smythe-Cramer Co., 754 F.2d at 183) (internal quotation marks omitted). “This
requires inquiry into the plaintiff's basis for filing suit. Awards to prevailing defendants will
depend on the factual circumstances of each case.” Id. (internal quotation marks omitted).
While Canning’s methods of litigating this case has left a good deal to be desired, she has clearly
articulated the basis under which she filed her claims against the Horse Transportation
Defendants. By way of a sworn statement filed in response to Brook Ledge’s first motion for
summary judgment, Canning stated that she personally saw representatives of Brook Ledge,
Morrissey’s, and Creech on her farm at the time of the incident. She alleges to have seen them
participating in the removal of the horses from her farm. She believed these horses to be worth a
large sum of money and claims that she physically intervened in order to stop one of the
Defendants from abusing one of the horses. Moreover, she claims that the Horse Transportation
Defendants were being commanded by the Bourbon County Sheriff’s patrol. Surely, if Canning
had seen this, her claims for a Fourth Amendment violation under Section 1983, conversion,
intentional infliction of emotional distress, and malicious use of process were not baseless.
This conclusion is not changed by the parade of counter affidavits that the Defendants
submit to the Court. The most recent affidavits had not been filed in the record before the
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motion for attorney’s fees, and so it is unclear whether they were available to Canning to have
convinced her of the baselessness of her claims any earlier. Moreover, the recently submitted
affidavit of Thom Peavey states that two of the Defendants were not present at the scene of the
incident, but admits that Morrissey’s was. Most importantly, however, the affidavits are nothing
more than conflicting witness testimony from both sides. On one hand the Plaintiff maintains
that she saw the Defendants on her farm at the time of the incident involved in improper
behavior. The majority of the Defendants’ affidavits are simply testimony of their agents or codefendants testifying in opposition to that fact. Had the case proceeded to trial, perhaps a jury
would have found the testimony of the Defendants’ witnesses persuasive and found that they
were not present as Canning claimed; however, these statements advanced by the Defendants are
insufficient to demonstrate that Canning’s claims were frivolous, unreasonable, or without
foundation so as to merit an award of attorney’s fees to the Horse Transportation Defendants as
prevailing parties under Section 1988.
B
The Horse Transportation Defendants argue that even if attorney’s fees are not merited
under Section 1988, the Court may impose them by virtue of its implied powers. As noted by the
Defendants, “the inherent authority of the Court is an independent basis for sanctioning bad faith
conduct in litigation.” First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501,
511 (6th Cir. 2002) (citing, “Chambers v. NASCO, Inc., 501 U.S. 32, 50, 111 S. Ct. 2123, 115 L.
Ed. 2d 27 (1991)). Quoting an opinion of the United States Supreme Court on this issue, the
Sixth Circuit Court of appeals defined the contours of a federal court’s inherent power to
sanction as follow:
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[A] court may assess attorney's fees when a party has “acted in bad faith, vexatiously,
wantonly, or for oppressive reasons.” In this regard, if a court finds “that fraud has
been practiced upon it, or that the very temple of justice has been defiled,” it may
assess attorney's fees against the responsible party, as it may when a party Ashows
bad faith by delaying or disrupting the litigation or by hampering enforcement of a
court order [ ]. “The imposition of sanctions in this instance transcends a court's
equitable power concerning relations between the parties and reaches a court's
inherent power to police itself, thus serving the dual purpose of Avindicat[ing]
judicial authority without resort to the more drastic sanctions available for contempt
of court and mak[ing] the prevailing party whole for expenses caused by his
opponent's obstinacy.”
First Bank of Marietta, 307 F.3d at 512 (6th Cir. 2002) (quoting Chambers, 501 U.S. at 45-46,
111 S.Ct. 2123) (citations omitted).
The Horse Transportation Defendants once again meticulously set forth the
aforementioned legal standard, but do not clearly apply any facts of this case to show that this
standard has been satisfied. It remains unclear to the Court specifically how Defendants believe
that Canning has acted in bad faith. The task of divining any bad faith attributable to Canning is
made more difficult by the fact that the undersigned became involved with this matter very late in
the process and thus has less familiarity with the interaction of the parties than it otherwise
would. The implication the Defendants’s motion seems to be that Cannning is a difficult person
who has been dishonest to the parties and the Court. Toward that end, the Defendants attached
an affidavit from Marcy Roberts, President of Morrissey’s Horse Pullmans, which included a
sworn statement that Canning’s attorney noted to Roberts how difficult Canning could be. [R.
125-3]. In another affidavit, Nicole Pieratt, President of Sallee Horse Vans, testifies that
Canning’s attorney indicated that Canning planned to sue all commercial horse carriers. [R. 1252]. The Defendants interpret this as a statement that Canning did not know which companies
were present at the time of the incident and was thus lying in her prior affidavit. [R. 125-1 at 2].
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Beyond the assertions of the Defendants, the record itself is clear that Canning’s
relationship with her attorney deteriorated such that he withdrew. [R. 58]. After that, Canning
proceeded pro se for a time, and then apparently discontinued her pursuit of her claims all
together. The Court understands the frustration of the Defendants in litigating this matter under
these circumstances. However, Defendants have not sufficiently shown any actions taken by
Canning that have so defiled the temple of justice as to be considered bad faith, vexatious,
wanton, or oppressive. Further, though the Court might not have the usual familiarity with the
case of having presided over it from the beginning, the record does not seem to reveal that
Canning has acted in bad faith, at least as it concerns the Horse Transportation Defendants.
Therefore, the Court will not use its implied powers to sanction Canning and award attorney’s
fees to the Defendants.
C
Finally, the Defendants argue that attorney’s fees are available to them under 28 U.S.C. §
1927. Under Section 1927, “Any attorney or other person admitted to conduct cases in any
court…who so multiplies the proceedings in any case unreasonably and vexatiously may be
required by the court to satisfy personally the excess costs, expenses, and attorneys' fees
reasonably incurred because of such conduct.” 28 U.S.C. § 1927. “Absent a showing of bad
faith, sanctions may be imposed at least when an attorney knows or reasonably should know that
a claim pursued is frivolous, or that his or her litigation tactics will needlessly obstruct the
litigation of nonfrivolous claims.” Riddle v. Egensperger, 266 F.3d 542, 553 (6th Cir. 2001)
(Ridder v. City of Springfield, 109 F.3d 288, 298 (6th Cir.1997)). Further, in the context of
Section 1927, sanctions are not appropriate for failure to “undertake a reasonable inquiry into a
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claim,” or for “simple inadvertence or negligence that frustrates the trial judge.” Id. (citations
omitted). Instead, “There must be some conduct on the part of the subject attorney that trial
judges, applying the collective wisdom of their experience on the bench, could agree falls short
of the obligations owed by a member of the bar to the court and which, as a result, causes
additional expense to the opposing party.” Id. (citing In re Ruben, 825 F.2d 977, 984 (6th
Cir.1987).
The Defendants engage in substantial discussion as to the interesting issue of whether
Section 1927 could apply to a pro se plaintiff. [R. 125-1 at 9-13]. However, the Court need not
opine on this issue because whether or not Section 1927 generally permits an award of attorney’s
fees in the case of a pro se plaintiff, such fees are not warranted here. From the Court’s previous
findings it is clear why this is the case. Under Section 1988, the Court has found that Canning’s
claims were neither frivolous, unreasonable, or without foundation. Further, the Court has found
that Canning did not act in bad faith, vexatiously, wantonly, or for oppressive reasons so as to
merit the use of the Court’s implied powers. The Horse Transportation Defendants have
advanced no additional facts suggesting that Canning, through bad faith, frivolity, or obstruction,
unreasonably and vexatiously “multiplied the proceedings,” and therefore the Court shall, for the
same reasons as previously articulated, refuse to award attorney’s fees under Section 1927 as
well.
III
Accordingly, for the aforementioned reasons, it here hereby ORDERED that the
Defendants’ Motion for Attorney’s Fees and Non-Taxable Expenses [R. 125] is DENIED.
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This 13th Day of September 2013.
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